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The "Broccoli" case: facts, dates and submissions
27 März 2008
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The Enlarged Board of Appeal of the EPO (EBoA) is currently
considering a case concerning patenting a certain type of invention related to
the production of plants and animals.
The referral G2/07 to the EBoA stems from an appeal in the opposition proceedings in the case of European patent No. 1 069 819 (T 83/05). The patent is owned by Plant Bioscience Limited and was opposed by Syngenta Participations AG (opposition received 22.4.03) and Groupe Limagrain Holding (opposition received 24.4.03). The appeals are related to the decision of the first-instance Opposition Division that the patent could be maintained in an amended form, whereas the opponents had requested that the patent be revoked in its entirety.
This patent concerns an invention in the field of plant biology and relates to methods for producing new Brassica plants, in particular broccoli, with elevated levels of anticarcinogenic glucosinolates. The claimed method involves the selective, molecular marker assisted breeding of "double haploid" breeding lines of broccoli with wild Brassica oleracea species.
Under the process exclusion of Article 53(b) EPC, European patents shall not be granted for essentially biological processes for the production of plants and animals. By decision of 16 June 1999, the Administrative Council transposed Article 2(2) of the Biotechnology Directive 98/44/EC which further defines the concept used in Article 53(b) EPC into the Implementing Regulations: Rule 26(5) EPC states that a process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection.
The referral to the Enlarged Board of Appeal arose because, in view of the claim containing steps which require human intervention, the referring board had to consider whether the claimed method was an essentially biological process for the production of plants. The questions asked of the Enlarged Board are concerned with better defining the degree and nature of human technical intervention which is required to escape the process exclusion of Article 53(b) EPC.
The patentability of product claims relating to plants in principle is not a subject of the referral. Inventions concerning plants have been regarded as patentable from the inception of the European Patent Convention. This principle was confirmed by the Article 4(2) of the Biotechnology Directive.
In a communication published in O.J. EPO 8-9/2007, the Enlarged Board of Appeal drew attention to the provisions of the Rules of Procedure of the Enlarged Board of Appeal, which mention that third parties may file written statements concerning the points of law raised. A number of individuals and organisations have made use of that possibility and submitted so-called amicus curiae briefs in which they express their views on these points. Moreover, the president of the EPO was invited by the EBoA to comment on the case in writing. These documents are all accessible in the electronic file of the case.
The EBoA is the highest instance of the EPO's Boards of Appeal, which form the Office's second-instance judiciary. Its tasks are to ensure uniform application of the law and to clarify points of law of fundamental importance that emerge from procedures pending before the EPO. Most of the EBoA's interventions are motioned by Boards of Appeal deciding in appeal cases, or the President of the EPO.
Further information
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EP1069819 on Register Plus
- The Office: Boards of appeal
- Appeals: Search the boards of appeal decisions database